Introduced Version






HOUSE BILL No. 1459

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 34-24-5; IC 35-38-1-7.1; IC 35-46-2; IC 35-50-2-9.

Synopsis: Bias crimes. Allows a person who suffers a personal injury or property damage caused by a criminal offense to bring a civil action to recover damages, including punitive damages, if the person who committed the offense knowingly or intentionally selected the victim because of the victim's color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex. Makes commission of a crime because of the color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex of the victim an aggravating circumstance that may be considered by a judge when the judge imposes a sentence for the crime. Expands the scope of the offenses relating to civil rights to include violations directed at a person because of the person's sexual orientation.

Effective: July 1, 2007.





Porter




    January 23, 2007, read first time and referred to Committee on Courts and Criminal Code.







Introduced

First Regular Session 115th General Assembly (2007)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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HOUSE BILL No. 1459



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 34-24-5; (07)IN1459.1.1. -->     SECTION 1. IC 34-24-5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]:
     Chapter 5. Civil Action for Victims of Bias Crime Offenders
    Sec. 1. As used in this chapter, "bias crime offender" means a person:
        (1) who:
            (A) committed an offense that injured an individual; and
            (B) knowingly or intentionally selected the individual as the victim of the offense because of the color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex of the individual; or
        (2) who:
            (A) committed an offense that damaged or otherwise affected property; and
            (B) knowingly or intentionally damaged or otherwise affected the property because of the color, creed, disability,

national origin, race, religion, sexual orientation, gender identity, or sex of the individual who owned or occupied the property.
    Sec. 2. If a person suffers a pecuniary loss because of the commission of an offense by a bias crime offender, the person may bring a civil action against the person that caused the loss.
    Sec. 3. A person bringing an action under section 2 of this chapter may seek to recover the following:
        (1) Actual and consequential damages.
        (2) Punitive damages in an amount not more than three (3) times the person's actual damages.
        (3) The costs of the action.
        (4) Reasonable attorney's fees.
    Sec. 4. A person may not recover damages under IC 34-24-3 and this chapter for the same offense.

SOURCE: IC 35-38-1-7.1; (07)IN1459.1.2. -->     SECTION 2. IC 35-38-1-7.1, AS AMENDED BY P.L.213-2005, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 7.1. (a) In determining what sentence to impose for a crime, the court may consider the following aggravating circumstances:
        (1) The harm, injury, loss, or damage suffered by the victim of an offense was:
            (A) significant; and
            (B) greater than the elements necessary to prove the commission of the offense.
        (2) The person has a history of criminal or delinquent behavior.
        (3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
        (4) The person:
            (A) committed a crime of violence (IC 35-50-1-2); and
            (B) knowingly committed the offense in the presence or within hearing of an individual who:
                (i) was less than eighteen (18) years of age at the time the person committed the offense; and
                (ii) is not the victim of the offense.
        (5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.
        (6) The person has recently violated the conditions of any

probation, parole, pardon, community corrections placement, or pretrial release granted to the person.
        (7) The victim of the offense was mentally or physically infirm.
        (8) The person was in a position having care, custody, or control of the victim of the offense.
        (9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
        (10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
        (11) The person:
            (A) committed trafficking with an inmate under IC 35-44-3-9; and
            (B) is an employee of the penal facility.
         (12) The person who committed the offense knowingly or intentionally:
            (A) selected the individual who was injured by the offense; or
            (B) damaged or otherwise affected property by the offense;
        because of the
color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex of the injured individual or of the owner or occupant of the property.
    (b) The court may consider the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:
        (1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
        (2) The crime was the result of circumstances unlikely to recur.
        (3) The victim of the crime induced or facilitated the offense.
        (4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
        (5) The person acted under strong provocation.
        (6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
        (7) The person is likely to respond affirmatively to probation or short term imprisonment.
        (8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
        (9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.


        (10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
        (11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
    (c) The criteria listed in subsections (a) and (b) do not limit the matters that the court may consider in determining the sentence.
    (d) A court may impose any sentence that is:
        (1) authorized by statute; and
        (2) permissible under the Constitution of the State of Indiana;
regardless of the presence or absence of aggravating circumstances or mitigating circumstances.
SOURCE: IC 35-46-2-1; (07)IN1459.1.3. -->     SECTION 3. IC 35-46-2-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 1. A person who knowingly or intentionally denies to another person, because of color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex, the full and equal use of the services, facilities, or goods in:
        (1) an establishment that caters or offers its services, facilities, or goods to the general public; or
        (2) a housing project owned or subsidized by a governmental entity;
commits a civil rights violation, a Class B misdemeanor.
SOURCE: IC 35-46-2-2; (07)IN1459.1.4. -->     SECTION 4. IC 35-46-2-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 2. A public servant having the duty to select or summon persons for grand jury or trial jury service who knowingly or intentionally fails to select or summon a person because of color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex commits discrimination in jury selection, a Class A misdemeanor.
SOURCE: IC 35-50-2-9; (07)IN1459.1.5. -->     SECTION 5. IC 35-50-2-9, AS AMENDED BY P.L.1-2006, SECTION 550, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 9. (a) The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one (1) of the aggravating

circumstances alleged. However, the state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual.
    (b) The aggravating circumstances are as follows:
        (1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
            (A) Arson (IC 35-43-1-1).
            (B) Burglary (IC 35-43-2-1).
            (C) Child molesting (IC 35-42-4-3).
            (D) Criminal deviate conduct (IC 35-42-4-2).
            (E) Kidnapping (IC 35-42-3-2).
            (F) Rape (IC 35-42-4-1).
            (G) Robbery (IC 35-42-5-1).
            (H) Carjacking (IC 35-42-5-2).
            (I) Criminal gang activity (IC 35-45-9-3).
            (J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
        (2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.
        (3) The defendant committed the murder by lying in wait.
        (4) The defendant who committed the murder was hired to kill.
        (5) The defendant committed the murder by hiring another person to kill.
        (6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
            (A) the victim was acting in the course of duty; or
            (B) the murder was motivated by an act the victim performed while acting in the course of duty.
        (7) The defendant has been convicted of another murder.
        (8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
        (9) The defendant was:
            (A) under the custody of the department of correction;
            (B) under the custody of a county sheriff;
            (C) on probation after receiving a sentence for the commission of a felony; or
            (D) on parole;
        at the time the murder was committed.


        (10) The defendant dismembered the victim.
        (11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
        (12) The victim of the murder was less than twelve (12) years of age.
        (13) The victim was a victim of any of the following offenses for which the defendant was convicted:
            (A) Battery as a Class D felony or as a Class C felony under IC 35-42-2-1.
            (B) Kidnapping (IC 35-42-3-2).
            (C) Criminal confinement (IC 35-42-3-3).
            (D) A sex crime under IC 35-42-4.
        (14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.
        (15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):
            (A) into an inhabited dwelling; or
            (B) from a vehicle.
        (16) The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
         (17) The defendant knowingly or intentionally selected the victim of the murder because of the color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex of the victim.
    (c) The mitigating circumstances that may be considered under this section are as follows:
        (1) The defendant has no significant history of prior criminal conduct.
        (2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
        (3) The victim was a participant in or consented to the defendant's conduct.
        (4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.
        (5) The defendant acted under the substantial domination of another person.
        (6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the

requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
        (7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
        (8) Any other circumstances appropriate for consideration.
    (d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing, and the availability of good time credit and clemency. The court shall instruct the jury that, in order for the jury to recommend to the court that the death penalty or life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstance beyond a reasonable doubt as described in subsection (l) and shall provide a special verdict form for each aggravating circumstance alleged. The defendant may present any additional evidence relevant to:
        (1) the aggravating circumstances alleged; or
        (2) any of the mitigating circumstances listed in subsection (c).
    (e) For a defendant sentenced after June 30, 2002, except as provided by IC 35-36-9, if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
        (1) the death penalty; or
        (2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly. After a court pronounces sentence, a representative of the victim's family and friends may present a statement regarding the impact of the crime on family and friends. The impact statement may be submitted in writing or given orally by the representative. The statement shall be given in the presence of the defendant.
    (f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.
    (g) If the hearing is to the court alone, except as provided by

IC 35-36-9, the court shall:
        (1) sentence the defendant to death; or
        (2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
    (h) If a court sentences a defendant to death, the court shall order the defendant's execution to be carried out not later than one (1) year and one (1) day after the date the defendant was convicted. The supreme court has exclusive jurisdiction to stay the execution of a death sentence. If the supreme court stays the execution of a death sentence, the supreme court shall order a new date for the defendant's execution.
    (i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold the hearing to consider the petition, the court's failure to set the hearing date is not a basis for additional post-conviction relief. The attorney general shall answer the petition for post-conviction relief on behalf of the state. At the request of the attorney general, a prosecuting attorney shall assist the attorney general. The court shall enter written findings of fact and conclusions of law concerning the petition not later than ninety (90) days after the date the hearing concludes. However, if the court determines that the petition is without merit, the court may dismiss the petition within ninety (90) days without conducting a hearing under this subsection.
    (j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:
        (1) conviction or sentence was in violation of the:
            (A) Constitution of the State of Indiana; or
            (B) Constitution of the United States;
        (2) sentencing court was without jurisdiction to impose a sentence; and
        (3) sentence:
            (A) exceeds the maximum sentence authorized by law; or
            (B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a new date to carry out the defendant's execution.
    (k) A person who has been sentenced to death and who has

completed state post-conviction review proceedings may file a written petition with the supreme court seeking to present new evidence challenging the person's guilt or the appropriateness of the death sentence if the person serves notice on the attorney general. The supreme court shall determine, with or without a hearing, whether the person has presented previously undiscovered evidence that undermines confidence in the conviction or the death sentence. If necessary, the supreme court may remand the case to the trial court for an evidentiary hearing to consider the new evidence and its effect on the person's conviction and death sentence. The supreme court may not make a determination in the person's favor nor make a decision to remand the case to the trial court for an evidentiary hearing without first providing the attorney general with an opportunity to be heard on the matter.
    (l) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
        (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
        (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.

SOURCE: ; (07)IN1459.1.6. -->     SECTION 6. [EFFECTIVE JULY 1, 2007] IC 35-38-1-7.1, IC 35-46-2-1, IC 35-46-2-2, and IC 35-50-2-9, all as amended by this act, apply only to offenses committed after June 30, 2007. IC 34-24-5, as added by this act, applies only to causes of action that accrue after June 30, 2007.